Opinion
Argued April 22, 1880
Decided June 1, 1880
Elliot Sandford for appellant. D.J. Dean for respondent.
The resolution of the board of health, which declared that the office then filled by the plaintiff should be honorary, and that no salary should be attached thereto, or paid thereafter, was evidently designed to abolish the salary and all compensation for services which should be rendered at any future time. No salary or pay whatever was to be attached to the same, and the word "honorary" evidently means without profit, fee or reward, and in consideration of the honor conferred by holding a position of responsibility and trust. If a recompense was to be received or a payment made, either by salary or otherwise, the office would not be honorary alone, but one of emolument also. The language employed expresses very clearly a design that all pay should cease; and if it was intended merely to change the amount or manner of payment, different phraseology should have been employed. Standing alone, the resolution is very explicit that no salary or money was to be paid for the services of the plaintiff.
Nor is the effect of the resolution modified or changed by the letter of the plaintiff, in which he expresses his appreciation of the honor conferred, and of the pleasure which it will afford him to discharge the duties of engineer. He thus assents to the terms of the resolution. If the resolution and letter be taken in connection, they show, beyond question, that any service rendered by the plaintiff was to be gratuitous, and only to be remunerated by the distinction which was conferred upon the incumbent, and that it was so understood at the time. After the board had expressly declared that it would pay no salary, there is no ground for claiming that it meant to pay in another form. No compensation is recoverable for the performance of a public service, or of official duties, unless it is given by law, and there is no implied obligation on the part of a municipal corporation, and no such relation between such a body and its officers, as compels the former to make remuneration unless the law permits it to be done. (Dillon on Mun. Corp., § 169; Sikes v. Inhabitants of Hatfield, 13 Gray, 347.) Hence it follows that there can be no right to compensation when it has been expressly declared and assented to that services rendered shall be honorary. In this view of the case presented, no valid ground is shown for a recovery in this action, and it remains only to consider some suggestions urged in support of the plaintiff's demand.
There is no merit in the position that the letter was unofficial and not addressed to the board, as it was evidently intended as a response to the resolution and addressed to the secretary of the board. But however this may be, it is evident that the plaintiff acted with full knowledge of the resolution, and that by its terms his position was an honorary one, and the duties to be performed without compensation.
The audit and allowance of compensation by the board for services for which charges were made, in 1872, to the amount of $1,600, was not sufficient to authorize a recovery. These services were rendered after the passing of the resolution, while it remained in force, and in defiance of the same, and therefore the plaintiff had no valid claim for any such demand. The certificate of the correctness of the bill was a mere gratuity, without authority, and did not constitute the legal auditing of a bona fide debt against the board of health or the city. It was beyond the power of the board to audit any such claim. It had already fixed the conditions of plaintiff's employment by the resolution referred to, and it could not change the terms, except by an express repeal of the resolution. So long as it remained in force, it was binding. An officer whose compensation is fixed cannot rightfully claim any thing beyond that. ( Palmer v. The Mayor, 2 Sandf. 318; Phœnix v. Supervisors of N.Y., 1 Hill, 362; Hatch v. Mann, 15 Wend. 44.) Any audit or allowance of any claims for which the county was not liable would be null and void for want of jurisdiction. ( People v. Lawrence, 6 Hill, 244.) After the board had declared that there should be no salary paid, and that the office should be honorary, it had no lawful right to audit a bill for services subsequently performed. The rule applicable to a practical construction of a contract has no relevancy where there is a positive agreement, as was the case here. Certainly it cannot be invoked to change the effect of a resolution adopted by a public body in reference to the compensation of persons engaged in its service.
Nor does the question arise whether the services having been rendered, the defendant is liable, because the plaintiff was not directly discharged from their performance. This rule has no application to corporations or public bodies, whose powers are limited by statute, and where the case is to be determined upon the construction to be placed upon a resolution of such body.
The claim that there was a rescission or suspension of the contract, and a new one made, is also unfounded. The allowance for services rendered after the resolution had been passed, and without its repeal, did not operate as a rescission or create any new liability.
There was no error in the introduction of a copy of the letter of the plaintiff in evidence, or in any of the rulings of the judge upon the trial, and the judgment should be affirmed.
All concur.
Judgment affirmed.